Courtroom prayers draw federal lawsuit against Montgomery...

1of5Precinct 1 Justice of the Peace Wayne Mack goes over warrant paperwork and procedures before the Precinct 1 warrant roundup Wednesday. Law enforcement agencies throughout Montgomery County gathered to help account for almost 500 outstanding tickets and warrants in Precinct 1.

2of5Precinct 1 Justice of the Peace Wayne Mack holds court during the Precinct 1 warrant roundup Wednesday. Law enforcement agencies throughout Montgomery County gathered to help account for outstanding tickets and warrants in Precinct 1.

3of5Justice of the Peace Precinct 1 Wayne Mack

4of5Charles Perez, left, U.S. Customs and Border Protection's area port director for Houston airports, welcomes Wayne Mack, Justice of the Peace Pct. 1, Montgomery County, during the ribbon cutting and open house for the U.S. Customs and Border Protection Federal Inspection Station at Conroe-North Houston Regional Airport on Thursday, Sept. 22, 2016. (Photo by Jerry Baker/Freelance)Photo: Jerry Baker, Freelance

5of5Judge Wayne Mack addresses the Pastors and men of faith who attended his luncheon on Monday at the First Baptist Church in Conroe.

The Freedom from Religion Foundation has filed a rare federal lawsuit against a sitting justice of the peace, claiming he is violating the First Amendment's separation of church and state by holding a prayer meeting before court each day.

The nonprofit foundation is joined in filing the suit by three people - a Christian lawyer, a lawyer who is not affiliated with a religion and an atheist who is not a lawyer but appeared before the judge – who say they felt pressured to participate in the morning prayer before Justice of the Peace Wayne Mack.

The suit says Mack locks the courtroom door for an invocation, monitors the body language of people who stay, and notices who leaves court before the prayer or knocks to re-enter after it. No other JPs hold prayer sessions or lock their courtrooms during business hours, according to the suit.

Mack's use of prayer meetings and the chaplains he invites to lead them were upheld in a challenge before the Texas Judicial Conduct Commission, which rarely sanctions a judge.

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Texas Attorney General Ken Paxton also issued an opinion upholding the prayers, and said this week that Mack is following legal precedent.

"Judge Mack is fully complying with the Constitution by adhering to the model for opening prayers the Supreme Court endorsed just a few years ago," Paxton said in a news release. "The Freedom from Religion Foundation's quest to expunge any vestige of religion from public life flies in the face of the Supreme Court's holdings."

The courtroom participants who sued in federal court offer a different take on the facts. They say the judge, in his official capacity, has given an "unambiguous impression" that he endorses "religion over non-religion and Christianity over all other faiths."

"Judge Mack hypocritically touts the idea of religious freedom while simultaneously impinging on the religious freedom of those in his courtroom," said Sam Grover, lead attorney for the plaintiffs at Freedom from Religion, a Wisconsin nonprofit founded in the 1970s that advocates for the separation of church and state.

The two lawyers and the county resident say they sued under pseudonyms to protect the outcomes of present and future cases before Mack, who majored in theology and has spoken publicly about including more religion in the public sector.

At a 2014, Faith & Freedom Prayer Breakfast, which doubled as a fundraising event, Mack was recorded on video pledging his commitment to impartiality but noting that "there is no reason as an elected official that I have to be ashamed to declare to this crowd and anybody listening that as the Justice of the Peace I will bring the Prince of Peace to work with me every day," according to the suit.

Mack, who presides over minor misdemeanor cases and civil disputes, declined to comment Wednesday, deferring to Hiram Sasser, an attorney with the First Liberty Institute, a Plano-based law firm that focuses on First Amendment and church-state issues, who represented him before the judicial commission.

Sasser said the concerns raised in the lawsuit have been addressed by Paxton's opinion and the state judicial commission conclusion.

"Those arguments have been made before," he said. "They've just sort of fallen on deaf ears."

Mack started the chaplaincy program in 2014 and has asked religious leaders of various faiths - Christian, Jewish, Muslim, Hindu, Mormon and Church of Christian Science - to give the invocation. An atheist asked to participate but did not show up for training, according to a statement from the First Liberty Institute.

Since the hearing before the judicial commission, Mack has added a sign outside the courtroom to clarify that people who do not want to participate in the pledge of allegiance or the prayer do not have to leave the room, and that the justice now keeps his eyes closed and head down during the prayer, according to the statement.

The Supreme Court has addressed the question of prayers by government entities twice, upholding the prayer practices in both cases. The first involved a legislative body in Nebraska and the second a town council in Greece, New York.

Grover, who represents the Montgomery County plaintiffs, said he plans to argue in Houston that the 2014 Greece ruling does not apply to courtroom prayer.

"It's a different situation where people are compelled by law or practical means to come before a judge for official business," he said. " Our local plaintiffs have felt coercive pressure to participate in the prayers because it's a judge endorsing them."

Douglas Laycock, a professor of religious liberty at the University of Virginia's law school, who argued before the Supreme Court in the Greece case, said he thinks Mack's prayer meeting is unconstitutional, but added, "It's not a slam dunk."

The high court has found that government-sponsored prayers in school are unconstitutional, but they are acceptable as a prelude to open legislative sessions as a matter of tradition.

Paul Horwitz, a law professor at the University of Alabama School of Law who wrote, "The Agnostic Age: Law, Religion, and the Constitution," said the judge's conduct appears to violate the constitution.

"There is very little reason to think this practice, if it is accurately described by the plaintiffs, would be upheld by any federal court consistently following the law of the Establishment Clause," he said. "Even if the judge has the best of intentions, the courtroom is a far cry from the legislative chamber or council meeting room."

The Montgomery County litigants are seeking a straightforward remedy: they want a federal judge in Houston to eliminate the prayer before court.

Gabrielle Banks covers federal court for the Houston Chronicle. She has been a criminal justice and legal affairs reporter for nearly two decades, including staff work at the Pittsburgh Post-Gazette and The Los Angeles Times, and freelance work for The New York Times, The Mercury News, Newsday and The Miami Herald. She has a graduate degree in journalism from Columbia University. Before her years as a reporter, she worked as a teacher, social worker and organizer.